United States District Court, E.D. North Carolina, Eastern Division
MALCOM J. HOWARD, Senior District Judge.
This matter is before the court on the government's motion to dismiss, or in the alternative for summary judgment [D. E. #49] as to, petitioner's motion to vacate pursuant to 28 U.S.C. § 22 55 [D. E. ##41, 4 6] and petitioner's motion for appointment of counsel [D. E. #42]. Petitioner has filed a response to the government's motion [D.E. #51], and this matter is ripe for disposition.
On July 9, 2012, petitioner pled guilty, pursuant to a written plea agreement, to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922 (g) (1) and 924. [D.E. ##26, 27]. As part of his plea agreement, petitioner agreed to waive the right to challenge his conviction or sentence in a collateral proceeding, except for claims of ineffective assistance of counsel or prosecutorial misconduct not known to petitioner at the time of his guilty plea. [D.E. #27 at 1]. On December 12, 2012, the court sentenced petitioner to a term of imprisonment of 204 months. [D.E. #38]. Judgment was entered on December 20, 2012. [D.E. #38]. Petitioner did not file an appeal.
On November 15, 2013, petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. At the direction of the court, petitioner filed a corrected motion to vacate his sentence on December 6, 2013, alleging that: (1) counsel was ineffective for failing to file a requested notice of appeal [D.E. #46 at 5]; (2) the arraignment colloquy was defective and rendered petitioner's guilty plea unknowing and invalid [D. E. #46 at 6]; (3) the court did not make an explicit finding regarding the prior convictions used to enhance petitioner's sentence under the Armed Career Criminal Act [D. E. #46 at 8]; (4) counsel was ineffective for failing to object to the court's lack of fact-finding as to petitioner's prior convictions [D.E. #46 at 9]; (5) counsel was ineffective for failing to explain the enhancement contained in 18 U.S.C. § 924(e) [D.E. #46 at unnumbered 10]; (6) counsel was ineffective for failing to object to petitioner's eligibility for an enhanced sentence under 18 u.s.c. § 924 (e) [D.E. #46 at unnumbered 10]; (7) counsel was ineffective for failing to object or argue in favor of receiving a reduction in offense level for acceptance of responsibility [D.E. #46 at unnumbered 10]; (8) counsel was ineffective for failing to move to suppress the stop and search of petitioner's car and statements made by petitioner [D.E. #46 at unnumbered 10]; (9) counsel did not investigate a viable defense and, as a result, petitioner's guilty plea should be withdrawn [D. E. #46 at unnumbered 10, 11]; and (10) counsel was ineffective for failing to object to the absence of a downward departure based on acceptance of responsibility [D.E. #46 at unnumbered 11].
I. Ineffective Assistance of Counsel Claims
To prove ineffective assistance of counsel, petitioner must satisfy the dual standards of Strickland v. Washington, 466 U.S. 668 (1984). First, petitioner must show that counsel's performance was deficient in that it fell below the standard of reasonably effective assistance. Id. at 687-91. In making this determination, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Id. at 689. The Strickland court reasoned that, "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. Second, petitioner "must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
A. Failure to File Requested Appeal
Petitioner's first claim alleges that he requested his trial counsel to file an appeal and that counsel failed to file the appeal. "[A]n attorney's failure to file a notice of appeal when expressly instructed to do so by his client constitutes ineffectiveness notwithstanding the likelihood of success on appeal because failure to file the requested appeal deprives petitioner of his Sixth Amendment right to assistance of counsel on direct appeal altogether." Miller v. United States, 150 F.Supp.2d 871, 878, 879 (E.D. N.C. 2001); See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) (Counsel's failure to file a notice of appeal when requested is per se ineffective assistance.). If the record does not conclusively show that petitioner's counsel was not ineffective for failing to file a notice of appeal, an evidentiary hearing is required. United States v. Greer, No. 05-7401, 2007 WL 542744, at *1 (4th Cir. Feb. 22, 2007).
In his § 2255 motion, signed under penalty of perjury, petitioner claims that he instructed his counsel to file a notice of appeal. No appeal was filed. In an affidavit attached to the government's motion, petitioner's trial counsel disputes petitioner's allegation. Based on these conflicting sworn statements, there is a genuine issue of material fact concerning whether petitioner requested his counsel to file notice of appeal.
B. Counsel's Failure to Object to Court's Failure to Deter.mine Prior Convictions
Petitioner's fourth claim alleges that counsel was ineffective for failing to object to the court's lack of fact-finding as to petitioner's prior convictions. At petitioner's sentencing hearing, counsel for petitioner withdrew his objections to the PSR. [D.E. #40 at 4]. Petitioner did not raise objection to counsel's withdrawal and even expressed gratitude for his counsel's representation. [D. E. #40 at 11]. Counsel's withdrawal of petitioner's objections is a matter of strategy that this court will not second-guess. Furthermore, petitioner does not allege sufficient facts to show prejudice insofar as he does not set forth objections to past ...